Plugged In To Covid-19

March 4, 2021

Coverage of State Actions Surrounding COVID-19

Since the emergence of SARS-CoV-2, the virus that causes coronavirus disease in late 2019, the state has been required to implement mitigation strategies, as well as provide resources for communities and institutions. To help keep clients informed and up to date on the pandemic, the Team at Hinman Straub has released Plugged In To COVID-19; a daily newsletter providing coverage of NY state actions.

What’s Inside Plugged In To COVID-19

Governor’s Briefing and Announcements
Executive Orders
Revised Guidance for Visitation at Nursing Homes
Revised Guidance for Visitation at ACFs
Guidance on COVID-19
Updated Links and Resources

Governor’s Briefings and Announcements on COVID-19

The Governor recently held a briefing and provided an update on statewide COVID-19 data and activity as of 3/2/2021. The overall statewide positivity rate is 3.53%. Statewide hospitalizations total 5,323, with ICU admissions associated with COVID-19 totaling 1,047, of which 735 are intubated. The Governor also confirmed that, on the previous day, 75 New Yorkers have passed away as a result of COVID-19.

The Governor announced that New York will receive 168,400 single doses of the Johnson & Johnson Company vaccine which was recently approved for Emergency Use Authorization (EUA) by the FDA and is unanimously recommended by the state’s COVID-19 Clinical Advisory Task Force on March 1^st. With this third vaccine option and additional supply of other current vaccines heading to New York, the State will “ramp-up” its vaccination distribution efforts by temporarily increasing hours of operation at state-run mass vaccination sites, specifically at Yankee Stadium, NYS Fairgrounds and the Javits Center will operate 24/7 in the coming week. Additional doses will also be distributed among enrolled pharmacies, FQHCs, local health departments, and hospitals.

The Governor also announced that domestic travelers will no longer be required to quarantine or test-out within 90-days of being fully vaccinated. Additionally, the following eased restrictions will soon be in effect.

Beginning March 22 – limits on residential outdoor gatherings will increase from 10 people to 25 people; and limits on social gatherings will increase from current 50 people to 100 people when indoors, and to 200 people if outdoors.
Beginning April 2 – Event, arts and entertainment venues will be permitted to open at 33% capacity with 100 people indoors and 200 outdoors; and with attendee testing 150 people indoors, and 500 people outdoors.

The Governor also announced, various re-openings across the state impacting the industries below, while still subject to strict health and safety protocols as guided by the State Department of Health (DOH).

Lastly, the State’s Legislative Majority Leaders have announced the introduction of legislation that will limit the Governor’s Emergency Powers. According to a recent press release, the proposed legislation (S5357/A5967) “will repeal the temporary emergency powers immediately, while allowing executive actions critical to public health to remain.”

Specifically, the Bill provides that the Governor’s broadened authority during a state disaster emergency, which was granted pursuant to Chapter 23 of the Laws of 2020, are “repealed”. Upon such repeal, any existing directive issued by Executive Order relating to the state disaster emergency may continue for 30 days from that date. Additionally, the Governor may modify or continue existing directives relating to public health, subject to issuing a public notice of the impacts and effects of such directive(s), allow for comment of such notice, and permits the State Legislature to terminate Executive Orders at any time. The Bill was introduced on Wednesday morning and is likely to pass on Friday, March 5th.

Executive Orders

The Governor signed EO No. 202.96 which continues the State’s disaster emergency as well as all suspensions and modifications of law, and any directives not superseded by a subsequent directive, as contained in EO No. 202 and each successor EO to 202, for thirty days until March 28, 2021.

This EO also repeals the directives included in EO No. 202.95 related to the reporting of COVID-19 vaccinations received by teachers employed by a P-12 school, either by that teacher or the employing school district, and replaces such directive to now require that every Local Health Department report the number of eligible P-12 teachers and the number of eligible P-12 school staff who have been vaccinated to the Department of Health upon request, in a form and manner to be determined by the Department.

Additionally, this EO includes directives to permit the following under strict adherence of state DOH guidance.

On March 26, 2021, all indoor family entertainment centers and places of amusement are permitted to open at a 25% capacity limit;
On April 9, 2021, all outdoor amusement parks can open to the public at 33% capacity;
Beginning March 5, 2021, movie theatres in any location of the state will be allowed to open at 25% capacity with a maximum of 50 people per screen; and

Effective February 26, 2021, indoor dining in New York City is allowed to increase from 25% capacity to 35% capacity.

Revised Guidance for Visitation at Nursing Homes

The Department of Health has issued revised guidance for indoor and outdoor visitation in nursing homes under the continued state of emergency. The revised guidance is effective as of February 26, 2021, and below are just a few key conditions which must be met for nursing homes to expand visitation and/or activities.

Indoor visitation will be permitted based on the county wide positivity rate, as follows:
- If county positivity rate is less than 5%, while no advanced visitor testing is explicitly required, DOH strongly encourages the visitor receive a negative COVID-19 test prior to entering the facility – facilities may use rapid testing;
- If county positivity rate is between 5% and less than 10%, visitors must provide a negative test result for COVID-19 from within the 72 hours prior, or facilities can use a rapid antigen test to meet this requirement. Testing is not required – but remains recommended – for visitors who have received both doses of the COVID-19 vaccination, have met the 14 day period after the second dose and are still within the 90-day period after the second dose.
- If county positivity rate is 10% or above, no indoor visitation of residents will be permitted, except for compassionate care situations, in accordance with CMS and CDC guidance.
A maximum daily visitor limit of 20% of the facility’s daily resident occupancy will be in place.
Outdoor visitation should continue to be prioritized.
Facilities should also ensure that resident visitation is separated and apart from other residents by use of a separate room, or while the resident is alone in a room.
The advisory provides detail on compassionate care visitation, which can apply to newly admitted residents with difficulties adjusting, residents experiencing emotional distress, and residents who previously received in person support or cueing from family members for eating/drinking and are presenting weight loss or dehydration.
Enhanced safety protocols and safety measures must still remain in practice.

Additional details and information is included in the DOH guidance for nursing home visitation, which can be found here.

Revised Guidance for Visitation at ACFs

The Department of Health has also recently issued revised guidance on visitation in adult care facilities (ACFs) during the continued state of emergency. This revised guidance is effective beginning March 3, 2021. Below are just a few of the newest key conditions which must be met for ACFs to expand visitation and activities.

A copy of the ACF’s adopted and effective visitation plan must be easily accessible and immediately available if requested and must clearly articulate designated visitation spaces (indoor, outdoor, or private, when privacy is requested) with the maximum number of visitors and residents permitted under effective social distancing and infection control policy measures.
All visits should be held outdoors whenever practicable, weather and other conditions permitting, and should continue to be facilitated on a regular basis.
The number of visitors inside the ACF should be limited based on the size of the building and physical space. A baseline table is provided.

Visitors under the age of 16 are permitted if accompanied by an adult 18 years or older.
Facilities should accommodate and support indoor visitation, including visits for reasons beyond compassionate care situations, when the COVID-19 countywide positivity is less than 10%, based on the guidelines outlined in the advisory.
- ACFs must use the CMS COVID-19 county positivity rate, found on the COVID-19 Nursing Home Data site as additional information to determine how to facilitate indoor visitation.
Compassionate care visits are permitted when visitation may not otherwise be permitted in accordance with the Department of Health’s current visitation guidance, including for newly admitted residents with difficulties adjusting, residents experiencing emotional distress, and residents who previously received in person support or cueing from family members for eating/drinking and are presenting weight loss or dehydration.

For additional details and information the DOH guidance for ACF visitation can be found here.

Guidance on COVID-19 Vaccine

Department of Health (DOH):

COVID-19 Vaccine Provider Guidance Update – This updated guidance expands on the groups of individuals eligible to receive the vaccine. Specifically, eligible groups now include public facing workers in regional food banks, food pantries and permitted home-delivered meal programs, soup kitchen and congregate meal programs, along with taxi, livery, black car, and transportation network company drivers.

Office of Mental Health (OMH):

Revised Return to Work Protocols for Clinical and Direct Care Settings – This guidance (updated on February 15, 2021) permits that direct care providers may allow certain clinical and direct support professionals or other facility staff who have been exposed to a confirmed case of COVID-19 to return to work after ten (10) days of quarantine if no symptoms have been reported during the quarantine period provided that certain outlined conditions are met.

Office of Children and Family Services (OCFS):

Guidance for COVID-19 Vaccine Access for Persons Age 16 and Over Residing in Programs or Facilities Licensed or Certified by OCFS – This letter is to notify provider agencies operating OCFS licensed or certified residential programs including foster care, close to home, detention, runaway and homeless youth, and domestic violence to provide for residents age 16 and over access to schedule COVID-19 vaccination appointments.

Programs must assist residents who are eligible and able to provide or obtain consent to schedule a vaccination appointment. Such assistance must include a review of the vaccine fact sheet with the individual, the individual’s parent or other person with legal authority to consent, to support informed consent decision making.

Updated Links and Resources

Hinman Straub Resources:

New York Forward:

Department of Health:

State Education Department